People Ex Rel. Brady v. . Martin , 145 N.Y. 253 ( 1895 )

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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] By section 307 of chapter 410 of the Laws of 1882, commonly called the Consolidation Act relating to the city of New York, it was provided that any member of the police force who had performed duty for a period of twenty years or upwards, might "in the discretion of the board of police, by resolution, unanimously adopted by a full board, be retired from service and placed upon the police pension roll." This provision of course manifestly and in terms vested a discretion in the board of police in regard to the adoption of the resolution. The law stood in that condition until 1885, when, by chapter 364 of the laws of that year, the section was amended so as to provide that any member of the police force who has performed duty therein for a period of twenty years or upwards, upon his own application in writing, "shall, by resolution, adopted by a majority vote of the full board, be relieved and dismissed from such force and service and placed on the roll of the police pension fund, and awarded and granted, to be paid from said pension fund, an annual pension during his lifetime of a sum of not less than one-half the full salary or compensation of such member so retired; provided, however, that no pension granted under the provisions of this section shall exceed the sum of one thousand dollars per annum, except," etc., the provision following being immaterial to the case before us. The question for our determination is whether, by this amendment, all discretion was taken from the board of police, and that upon an application of a member of the police force who had served for twenty years the board was bound, under all circumstances, to adopt a resolution dismissing him from the force and placing him upon the pension roll. The relator claims that the board had no discretion except to determine the fact whether he had served the requisite length of time, and to decide upon the amount of the pension to which he might be entitled. The defendants contend that by the terms of the provision they are not bound at all events to pass the resolution, but that it is subject to a discretion in such board, to be reasonably and fairly exercised upon the merits of each application.

We think that by the amendment the members of the police board were not entirely divested of all discretion in regard to the adoption of the resolution retiring the applicant, and that the board was not bound to grant the application upon the mere fact that he had served twenty years upon the force, The effect of the amendment was to eliminate the necessity of a unanimous vote of the full board for the adoption of the resolution retiring the applicant. We cannot see how proper effect can be given to the language which requires a majority vote of the full board for the adoption of the resolution, unless some discretion is vested in the members of the board upon the subject. The act does not assume to dictate to the members how they shall vote upon the resolution. It does require for its adoption a majority vote of all the board. One member may, therefore, vote against it. Which one shall it be? No more power is given to one member than to another to vote against it, and in voting against it the member who does so uses his judgment and discretion. Judgment and discretion being given to some member of the board, how can it be said that it is not given to all? If two members should vote against the resolution and resort to the courts must be had for the purpose of compelling the adoption of the resolution by a majority vote, how should the order of the court be enforced? Each member of the board might claim that he had the right under the statute to vote against the adoption of the resolution according to the dictates of his honest judgment, and how could the court single out any one of the four members and allow him to use his judgment, while denying that right to the other three? Or, if the language of the statute were to be used in the order of the court and the board should be directed as a body to adopt the resolution by a majority vote, ought any member of that board to be proceeded against as for a contempt in using his judgment and voting against the resolution? The court has no power under this statute to direct that all the members shall vote for it; and, if not all, which three of them shall it direct? And how can it be said that any one has violated the statute or the order of the court when he has but exercised his discretion and judgment and refused to vote for the adoption of the resolution? From the very language of the section it seems to us that some discretion is vested in the members of the board. If the legislature intended otherwise, and that the resolution should be passed at all events when the fact of the twenty years' service was ascertained, it seems to us clear that other and different and plainer language would have been employed. The board has been invested with authority to retire the applicant by a majority vote of the full board, but as no direction has been given requiring the members to vote for the adoption of the resolution, it follows that they must be at liberty to vote in favor of or against such application.

This question was decided in the same way we now decide it in the case of People ex rel. Bolster v. French, by the General Term of the first department, which case is reported in 46 Hun, 232, and we agree with the reasoning adopted by Judge DANIELS in delivering the opinion of the court in that case. The learned judge at Special Term in this case took the same view and for the same reasons. The case of People ex rel. Tuck v. French (108 N.Y. 105), while not determining the question, looks in the same direction. We do not mean by this construction of the act to say that there is in all cases an unlimited and unreviewable discretion vested in the members of the board of police to act in an arbitrary or wholly unjustifiable manner in refusing to adopt the resolution, being guided by their own arbitrary will and discretion. The discretion is a judicial one, to be exercised reasonably and fairly upon the application of the policeman for retirement. Generally, it would appear to be the duty of the board to grant such application when the facts upon which the right of the policeman depended to make it were made reasonably clear. But where grave charges of misconduct have been preferred immediately after the application for retirement has been made, and before it has been acted upon by the board, we think the board has the right, before proceeding to act upon the application, to investigate such charges; and if it appear upon such investigation that the charges are not simply the result of malice, and are not stale, and are true in fact, and are also of such a nature as would authorize the board, upon conviction, to dismiss the offender from the force, then such board would be entirely justified in convicting and dismissing him, and the dismissal would furnish a conclusive reason for the denial of the application to place the officer upon the pension roll. It would be the duty of the board to act with reasonable promptness upon the charges preferred against an applicant, and it must be assumed it would also act upon them in entire good faith and with a desire to honestly discharge its official duty.

We are of the opinion that the courts below have properly construed the section in question, and the order appealed from should, therefore, be affirmed, with costs.

All concur.

Order affirmed.